New Formal Ethics Opinion(s) from the Board of Professional Responsibility

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Lucian T. Pera
Editor-in-Chief, TBALink

JIM BELL v. RICH PRODUCTS CORPORATION
Court:TSC - Workers Comp Panel
Attorneys:
Stacey Cason and Terry L. Hill, Manier & Herod, Nashville, Tennessee,
for the appellant, Rich Products Corporation.
Dicken E. Kidwell, Murfreesboro, Tennessee, for the appellee, Jim
Bell.
Judge: LOSER
First Paragraph:
This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting of
findings of fact and conclusions of law. In this appeal, the employer
insists the award of permanent partial disability benefits is
excessive and that the trial court erred in commuting the award to a
lump sum. As discussed below, the panel has concluded the judgment
should be affirmed.
http://www.tba.org/tba_files/TSC_WCP/belljim.wpdJ. W. HARGROVE, et al. v. LARRY E. CARLTON, et al.
Court:TCA
Attorneys:
Jason A. Golden, Columbia, Tennessee, for the appellants, J. W.
Hargrove, Pat Hargrove, Jennifer Hargrove, Janie Louise Hargrove,
Lurene Nalls, and John C. Peach.
C. Dewees Berry, IV and Susan W. Foxman, Nashville, Tennessee, for the
appellees, Larry E. Carlton and Michelle D. Carlton.
Judge: CANTRELL
First Paragraph:
After the defendant landowners placed gates across a roadway that ran
through their land, some adjoining landowners filed suit to have the
gates removed. The plaintiffs argued that the roadway was a public
road, or in the alternative that they had acquired prescriptive rights
to use it. The trial court ruled for the defendants. We affirm.
http://www.tba.org/tba_files/TCA/hargrovejw.wpd
DEBORAH G. HARVEY v. FELIPA B. COVINGTON, d/b/a CHOICE CORPORATE
TRAINING INTERNATIONAL
Court:TCA
Attorneys:
James B. Johnson, Nashville, Tennessee, for the appellant, Felipa B.
Covington d/b/a Choice Corporate Training International.
John E. Rodgers, Jr., Nashville, Tennessee, for the appellee, Deborah
G. Harvey.
Judge: FARMER
First Paragraph:
This appeal arises from a business dispute between the parties.
Businesswoman and Investor signed letter of intent to create limited
liability company. Business then began operation. Thereafter,
several operational disputes arose between the parties, as well as
disputes over Businesswoman's use of Business funds. The trial court
determined that Businesswoman had defrauded Investor of invested funds
and awarded Investor those funds. Investor was also awarded back pay
promised by Businesswoman through Business. We find that a
partnership agreement existed between the parties and reverse the
trial court's judgment. The case is remanded for rescission of the
partnership on the basis that it was created under fraudulent
circumstances. The trial court's decision to deny attorney's fees
requested by Businesswoman is affirmed.
http://www.tba.org/tba_files/TCA/harveydeborah.wpd
LINDA LOUISE PARNHAM v. WAYNE LEE PARNHAM
Court:TCA
Attorneys:
Fred C. Dance, Nashville, Tennessee, for the appellant, Wayne Lee
Parnham.
Grayson Smith Cannon, Goodlettsville, Tennessee, for the appellee,
Linda Louise Parnham.
Judge: KOCH
First Paragraph:
This appeal involves the continuing obligation of a non-custodial
parent to pay child support following a discharge in bankruptcy. The
custodial spouse filed a petition in the Circuit Court for Davidson
County seeking to enforce the modified child support provision in
their marital dissolution agreement. The non-custodial parent
responded that his discharge in bankruptcy relieved him of any further
obligation to pay this support. Following a hearing, the trial court
held that the non-custodial spouse's Chapter 7 bankruptcy did not
discharge his child support obligation but denied the custodial
spouse's requests for attorney's fees and for a wage assignment. Both
parties have appealed. We have determined that the trial court
properly concluded that the non-custodial spouse's child support
obligation had not been discharged but that the trial court erred by
declining to award the custodial spouse her attorney's fees and by
refusing to grant her request for a wage assignment.
http://www.tba.org/tba_files/TCA/parnhamll.wpd
COUNTY OF SAN MATEO, CALIF. v. MURRAY GREEN, SR.
Court:TCA
Attorneys:
David Comer, Lawrenceburg, Tennessee, for the appellant, Murray Green,
Sr.
Paul G. Summers, Attorney General and Reporter, Stuart Wilson-Patton,
Assistant Attorney General, Nashville, Tennessee, for the appellee,
County of San Mateo, Calif.
Judge: COTTRELL
First Paragraph:
Appellant appeals the enforcement of a 1983 California judgment for
reimbursement for public assistance provided to his children through
1982. Because the judgment expired under the applicable statutes of
limitation in both California and Tennessee before this enforcement
action was brought, we find that Appellant had a vested right in that
defense and reverse the trial court's judgment.
http://www.tba.org/tba_files/TCA/sanmateo.wpd
SERVPRO INDUSTRIES, INC. v. STEPHEN PIZZILLO
Court:TCA
Attorneys:
Robert Zarco and Robert M. Einhorn, Miami, Florida, and Walter H.
Stubbs, Gallatin, Tennessee, for the appellant, Stephen Pizzillo.
Lawrence C. Maxwell and W. Edward Ramage, Nashville, Tennessee, for
the appellee, Servpro Industries, Inc.
Judge: CANTRELL
First Paragraph:
The trial court granted all of a franchisor's claims against its
former franchisee, and dismissed all the franchisee's counterclaims.
Among other things, the court found that after the expiration of his
franchise, the franchisee had entered into a competing business, in
violation of an enforceable non- compete clause in the franchise
agreement, and enjoined the franchisee from any further violations. We
affirm.
http://www.tba.org/tba_files/TCA/servpro.wpd
AMY LYNN SURBER v. RALPH LEE CANNON
Court:TCA
Attorneys:
Charles R. Ray, Jeffery S. Frensley, Nashville, Tennessee, for the
appellant, Amy Lynn Surber.
James L. Weatherly, Jr., Nashville, Tennessee, for the appellee, Ralph
Lee Cannon.
Judge: COTTRELL
First Paragraph:
Twice, while walking her dog, the then fourteen year old plaintiff
witnessed the defendant, standing naked, masturbating in his garage.
The defendant was criminally prosecuted. The plaintiff then commenced
the underlying civil action against him, alleging outrageous conduct,
intentional nuisance and malicious harassment under Tenn. Code Ann. S
4-21-701. The court directed a verdict on the nuisance and malicious
harassment claims, and the jury found for the defendant on the
outrageous conduct claim. In her appeal, the plaintiff challenges
only the disposition of the malicious harassment claim. Because
there was no evidence to establish all the elements of the tort of
malicious harassment as set forth in Washington v. Robertson County,
Tennessee, 29 S.W.3d 466 (Tenn. 2000), we affirm.
http://www.tba.org/tba_files/TCA/surbera.wpd
GINGER TURNER VOOYS v. ROBERT PHILLIPS TURNER, JR.
Court:TCA
Attorneys:
David S. Zinn, Brentwood, Tennessee, for the appellant, Robert
Phillips Turner, Jr.
Phillip E. Smith, Nashville, Tennessee, for the appellee, Ginger
Turner Vooys.
Judge: COTTRELL
First Paragraph:
The sole issue presented in this appeal is the propriety of the trial
court's award to Wife of postjudgment interest on funds Husband
deposited in the office of the clerk of the trial court prior to the
appeal of the final order divorcing the parties. The funds represent
the purchase price of the marital residence which had been awarded to
Wife. Exercising an option to purchase the house, Husband deposited
$185,000 with the court clerk and tendered it in open court. Then
Husband appealed various portions of the final order, including the
award of the house to Wife; he also moved to stay the execution and
enforcement of that and other portions of the judgment without paying
a bond on the ground that the funds he had already deposited should
relieve him of the necessity of posting an additional bond. The
motion also requested that the funds be placed in an interest bearing
account. The stay of execution was granted, but the motion to deposit
at interest was never ruled upon. After the trial court's judgment
was affirmed on appeal, Wife filed a motion seeking interest on all
money judgments rendered against Husband. The trial court found that
Wife was entitled to postjudgment interest on the $185,000. Husband
then commenced this appeal. We affirm.
http://www.tba.org/tba_files/TCA/vooysg.wpdSTATE OF TENNESSEE v. LEE O. ANDERSON
Court:TCCA
Attorneys:
C. Michael Robbins, Memphis, Tennessee, for the appellant, Lee O.
Anderson.
Paul G. Summers, Attorney General and Reporter; Lucian D. Geise,
Assistant Attorney General; Elizabeth T. Rice, District Attorney
General; and Colin A. Campbell, Assistant District Attorney General,
for the appellee, State of Tennessee.
Judge: WILLIAMS
First Paragraph:
The defendant was found guilty by a Fayette County jury of simple
possession of a controlled substance, a Class A misdemeanor; delivery
of a controlled substance in an amount of .5 grams, to wit cocaine, a
Class B felony; and delivery of a controlled substance in an amount
less than .5 grams, to wit cocaine, a Class C felony. Tenn Code Ann.
S 39-17-417(a) & (c). The defendant was sentenced to concurrent
sentences of eleven months and twenty-nine days, thirty years, and
fifteen years, respectively, with fines totaling $4250. The defendant
now brings this appeal claiming that: 1) the trial court erred by
denying his motion in limine that sought to preclude the State from
introducing evidence regarding proof of the defendant's sale of a
controlled substance as applied to this case, 2) that the trial court
erred because it denied the defendant's requests to charge the jury
with special instructions regarding the delivery of a controlled
substance and simple possession or casual exchange, and 3) the trial
court erred by not granting the defendant's motion for a mistrial
because the State indicated during opening statements that it would
prove that the defendant had sold cocaine, and made repeated
references during trial to the offense of sale of cocaine. After a
review of the record, we conclude that the issues raised by the
defendant in this appeal are without merit. The judgment of the trial
court is affirmed.
http://www.tba.org/tba_files/TCCA/andersonlo.wpd
STATE OF TENNESSEE v. STACEY PHILANDER BALDON
Court:TCCA
Attorneys:
Rebecca S. Mills, Ripley, Tennessee, for the appellant, Stacey
Philander Baldon.
Paul G. Summers, Attorney General and Reporter; Mark E. Davidson,
Assistant Attorney General; Elizabeth T. Rice, District Attorney
General; and Tracey A. Brewer, Assistant District Attorney General,
for the appellee, State of Tennessee.
Judge: RILEY
First Paragraph:
Defendant was convicted by a Lauderdale County jury of possession of
0.5 grams or more of cocaine with intent to deliver, a Class B felony,
and possession of drug paraphernalia, a Class A misdemeanor. In
addition, defendant entered a guilty plea to felony possession of a
firearm, a Class E felony. He was sentenced as a Range II, multiple
offender, and received concurrent sentences of twelve years, eleven
months and twenty-nine days, and two years respectively. Defendant
raises the following issues for our review: (1) whether the trial
court erred by denying his motion to suppress evidence seized pursuant
to the search warrant; (2) whether the trial court erred by denying
his request for a severance of defendants; (3) whether the trial court
erred in excluding the prior recorded testimony of his co-defendant;
(4) whether the trial court improperly allowed the arresting officer
to testify as to his opinion regarding the veracity of co-defendant's
admission; (5) whether the jury pool was tainted by statements of a
potential juror; and (6) whether the state improperly exercised its
peremptory challenges. Upon our review of the record, we find
defendant's allegations to be without merit; thus, the judgment of the
trial court is affirmed.
http://www.tba.org/tba_files/TCCA/baldonsp.wpd
STATE OF TENNESSEE v. CARLOS L. BATEY
Court:TCCA
Attorneys:
James O. Martin, III, Nashville, Tennessee, for the appellant, Carlos
L. Batey.
Paul G. Summers, Attorney General and Reporter; Jennifer L. Smith,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Ana Lucia Escobar, Assistant District Attorney General,
for the appellee, State of Tennessee.
Judge: TIPTON
First Paragraph:
The defendant appeals a certified question from the trial court's
denial of his motion to suppress cocaine seized incident to his
warrantless arrest. He contends that the police lacked probable cause
to arrest him because the state failed to prove the basis of knowledge
and the reliability of the informant who arranged the drug transaction
which led to his arrest. We affirm the trial court's denial of the
motion to suppress.
http://www.tba.org/tba_files/TCCA/bateycl.wpd
STATE OF TENNESSEE v. BILLY J. COFFELT
Court:TCCA
Attorneys:
Leslie A. Bruce, Nashville, Tennessee, attorney for the appellant,
Billy J. Coffelt.
Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan,
Counsel for the State; Victor S. Johnson, III, District Attorney
General; and Roger D. Moore, Assistant District Attorney General, for
the appellee, State of Tennessee.
Judge: TIPTON
First Paragraph:
The petitioner appeals the trial court's denial of his motion for
delayed appeal regarding his petition for post-conviction relief. We
remand the case to the trial court.
http://www.tba.org/tba_files/TCCA/coffeltbj.wpd
DAVID A. CROSS v. JAMES M. DUKES, WARDEN
Court:TCCA
Attorneys:
David A. Cross, Henning, Tennessee, Pro Se.
Michael E. Moore, Solicitor General; Lucian D. Geise, Assistant
Attorney General; and Elizabeth T. Rice, District Attorney General,
for the appellee, State of Tennessee.
Judge: RILEY
First Paragraph:
Petitioner appeals the summary dismissal of his petition for writ of
habeas corpus. The trial court determined that petitioner did not
receive an illegal sentence, and petitioner now appeals this ruling.
We affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/crossda.wpd
JAMES DUBOSE v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
James DuBose, Clifton, Tennessee, pro se, (post-conviction); Eugene
Honea, (post-conviction) and Robert Plummer, Franklin, Tennessee
(trial and direct appeal), for the appellant, James DuBose.
Paul G. Summers, Attorney General and Reporter, Todd R. Kelley,
Assistant Attorney General, Joseph Baugh, District Attorney General
(trial), Ronald L. Davis, District Attorney General (post-
conviction), and Jeffrey Burks, Assistant District Attorney General
(post-conviction), for the appellee, State of Tennessee.
Judge: OGLE
First Paragraph:
The petitioner, James DuBose, was convicted by a jury in the
Williamson County Circuit Court of one count of first degree felony
murder with the underlying felony being aggravated child abuse. The
trial court sentenced the petitioner to life imprisonment in the
Tennessee Department of Correction. This court and the Tennessee
Supreme Court affirmed the petitioner's conviction. The petitioner
subsequently filed a petition for post-conviction relief. After a
hearing, the post- conviction court denied the petitioner's request
for relief. On appeal, the petitioner raises the following issues for
our review: (1) whether the State engaged in prosecutorial misconduct
during the course of the petitioner's trial; (2) whether petitioner's
trial counsel provided ineffective assistance of counsel; (3) whether
the trial court erred in failing to give curative jury instructions;
and (4) whether the petitioner was charged pursuant to a faulty
indictment. Upon review of the record and the parties' briefs, we
affirm the judgment of the post-conviction court.
http://www.tba.org/tba_files/TCCA/dubosej.wpd
ISAAC EARL EDGIN v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Gregory D. Smith, Clarksville, Tennessee, for the appellant, Isaac
Earl Edgin.
Paul G. Summers, Attorney General & Reporter; Clinton J. Morgan,
Assistant Attorney General; John Wesley Carney, Jr., District Attorney
General; and B. Dent Morriss, Assistant District Attorney, for the
appellee, State of Tennessee.
Judge: WILLIAMS
First Paragraph:
The petitioner appeals from a Montgomery County trial court's order
dismissing his petition for post-conviction relief. He argues that he
is entitled to a new trial because, among other things, his trial
counsel provided him ineffective assistance of counsel. Because the
judgment fails to contain findings of fact and conclusions of law, the
order dismissing this cause is reversed and the case is remanded to
the trial court for a new post-conviction proceeding.
http://www.tba.org/tba_files/TCCA/edginIe.wpd
STATE OF TENNESSEE v. CORRIE JOHNSON
Court:TCCA
Attorneys:
Chadwick G. Hunt, Savannah, Tennessee, for the appellant, Corrie
Johnson.
Paul G. Summers, Attorney General and Reporter; Laura E. McMullen,
Assistant Attorney General; G. Robert Radford, District Attorney
General; and John W. Overton, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.
Judge: RILEY
First Paragraph:
The defendant was convicted by a Hardin County jury of driving under
the influence (DUI), possession of marijuana, and possession with the
intent to sell or deliver 0.5 grams or more of cocaine. The trial
court sentenced the defendant to two 11 month and 29 day sentences for
the DUI and possession of marijuana convictions, suspended after
serving 30 days in jail. The trial court sentenced the defendant to 9
years incarceration, as a Range I standard offender, for possession
with intent to sell or deliver 0.5 grams or more of cocaine. All
sentences were to be served concurrently. In this appeal as a matter
of right, the defendant alleges the trial court erred by denying (1)
his motion to suppress evidence discovered as a result of the vehicle
stop and (2) his request for alternative sentencing. After a thorough
review of the record, we affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/johnsonc.wpd
STATE OF TENNESSEE v. JAMES MCARTHUR
Court:TCCA
Attorneys:
Alicia A. Howard, Memphis, Tennessee, for the appellant, James
McArthur.
Paul G. Summers, Attorney General and Reporter; Laura E. McMullen,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Camille R. McMullen, Assistant District Attorney General,
for the appellee, State of Tennessee.
Judge: RILEY
First Paragraph:
Defendant, James McArthur, appeals his two jury convictions for
aggravated robbery for which he received concurrent eight-year
sentences. He contends on appeal that the evidence was insufficient
to support the verdicts, and he was deprived of a fair and impartial
jury. We affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/mcarthurj.wpd
STATE OF TENNESSEE v. MARCUS MORROW
Court:TCCA
Attorneys:
Paul G. Summers, Attorney General and Reporter, David H. Findley,
Assistant Attorney General, Mike Bottoms, District Attorney General,
and Larry Nickell, Assistant District Attorney General for the
appellant, the State of Tennessee.
Christopher L. Dunn, Columbia, Tennessee, for the appellee, Marcus
Morrow.
Judge: OGLE
First Paragraph:
The appellant, the State of Tennessee, appeals the order of the Maury
County Circuit Court permitting the appellee, Marcus Morrow, to
participate in a work release program during his forty- five-day
incarceration for driving under the influence of an intoxicant (DUI),
second offense. Following a review of the record and the parties'
briefs, we reverse the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/morrowma.wpd
STATE OF TENNESSEE v. WILLIAM "BUTCH" OSEPCZUK
Court:TCCA
Attorneys:
Hershell D. Koger, Pulaski, Tennessee, for the Appellant, William
"Butch" Osepczuk.
Paul G. Summers, Attorney General and Reporter, Michael Moore,
Solicitor General, Marvin E. Clements, Jr., Assistant Attorney
General, T. Michael Bottoms, District Attorney General, for the
Appellee, State of Tennessee.
Judge: HAYES
First Paragraph:
William Osepczuk was convicted of criminal attempt to commit first
degree murder and was sentenced to twenty-five years in the Department
of Correction. He now appeals his conviction challenging the
sufficiency of the convicting evidence based upon the non credible
testimony of the victim and the erroneous admission of non relevant
physical evidence. Finding the proof more than sufficient to support
his conviction, we affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/osepczukwbutch.wpd
STATE OF TENNESSEE v. CHARLES A. REYNOLDS
Court:TCCA
Attorneys:
Leonard M. Caputo, Chattanooga, Tennessee, Charles G. Jenkins, Sr.,
and Charles G. Jenkins, Jr., Jasper, Tennessee, for the appellant,
Charles A. Reynolds.
Paul G. Summers, Attorney General and Reporter, David H. Findley,
Assistant Attorney General, J. Michael Taylor, District Attorney
General, and Steve Strain, Assistant District Attorney General, for
the appellee, State of Tennessee.
Judge: OGLE
First Paragraph:
The appellant, Charles A. Reynolds, was convicted by a jury in the
Marion County Circuit Court of one count of first degree felony murder
committed during the perpetration of a kidnapping or robbery and one
count of especially aggravated kidnapping. The trial court imposed
concurrent sentences of life imprisonment in the Tennessee Department
of Correction for the felony murder conviction and fifteen years
incarceration in the Department for the especially aggravated
kidnapping conviction. On appeal, the appellant raises the following
issues for our consideration: (1) whether the trial court erred in
denying the appellant's motion for judgments of acquittal at the close
of the State's case-in-chief; (2) whether the trial court erred in
denying his motion for new trial in which he challenged the
sufficiency of all the evidence underlying the jury's verdicts; and
(3) whether the trial court erred in admitting evidence of another
crime committed by the appellant on the night of the murder.
Following a thorough review of the record and the parties' briefs, we
affirm the judgments of the trial court.
http://www.tba.org/tba_files/TCCA/reynoldsca.wpd
MIRACK R. SMITH v. STATE OF TENNESSEE
WITH CONCURRING OPINION
Court:TCCA
Attorneys:
Robert B. Gaia, Memphis, Tennessee, for the appellant, Mirack R.
Smith.
Paul G. Summers, Attorney General and Reporter; Kim R. Helper,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Dawn Doran, Assistant District Attorney General, for the
appellee, State of Tennessee.
Judge: WILLIAMS
First Paragraph:
The Petitioner pled guilty to one count of second degree murder and
one count of especially aggravated robbery, both Class A felonies.
Tenn. Code Ann. S 39-13-202 and - 403. The Petitioner received
concurrent sentences of thirty years, as a Range II offender, and
fifteen years, as a Range I offender, respectively. The Petitioner
filed a petition for post-conviction relief; however, the petition was
ultimately dismissed. The Petitioner now appeals the post-conviction
court's denial of relief. The Petitioner contends: 1) that trial
counsel was ineffective because counsel knew that the Petitioner had a
history of mental illness but failed to investigate it, and 2) that he
did not voluntarily and knowingly enter into the plea agreement
because he did not know that he was to be sentenced to the thirty-year
sentence as a Range II offender. Our review of the record has failed
to yield any evidence that weighs against the post-conviction court's
dismissal of the Petitioner's petition. Accordingly, the
post-conviction court's dismissal of the Petitioner's petition is
affirmed.
http://www.tba.org/tba_files/TCCA/smithmr_opn.wpdhttp://www.tba.org/tba_files/TCCA/smithmr_con.wpd
VERNON WEST v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Jeffery S. Glatstein, Memphis, Tennessee, for the Appellant, Vernon
West.
Paul G. Summers, Attorney General and Reporter, Michael Moore,
Solicitor General, Kim R. Helper, Assistant Attorney General, William
L. Gibbons, District Attorney General, and William D. Bond, Assistant
District Attorney General, for the Appellee, State of Tennessee.
Judge: HAYES
First Paragraph:
Vernon West appeals the Shelby County Criminal Court's dismissal of
his petition for post- conviction relief. West collaterally attacks
his conviction for second degree murder upon the grounds of
ineffective assistance of counsel. Specifically, he contends that
trial counsel was ineffective for failing to file a motion to sever,
for failing to investigate the case and for failing to call two
witnesses to testify at trial. After review of the record, we affirm
the trial court's denial of post-conviction relief.
http://www.tba.org/tba_files/TCCA/westv.wpd

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